Tax exiles, convicted criminals and also those found guilty of breaking the House of Lords code of conduct are to be stripped of their peerages, under proposals which Justice Secretary Jack Straw is presently ‘fast-tracking’. According to news reports, there is cross-party support for such reform, although we have yet to hear whether there is any cross-party opposition.

We hear little or nothing of questions like:

Do we need more legislation?

Should legislation be enacted retrospectively?

Will the punishment fit the crime? and

Why has the emphasis shifted from peers ‘fixing’ the law of the land for personal gain[1] to spent convictions and tax residency[2]?

Do we need more legislation? Since the House of Lords is one of our oldest institutions, the origins of which can be traced to Saxon times[3], it would be surprising if there had not been some wayward peers along the way, and a legislative procedure devised to deal with them. Readers of Simon Heffer’s DT comment[4] will be aware that such a procedure does exist, and is called an Act (or Bill) of Attainder. This is essentially an Act of Parliament similar to a statute, in which Parliament acts as a court and passes judgement on an individual. Sanctions are determined by Parliament, and can include sequestration of assets or stripping of title; they may be applied posthumously, and can be repealed if necessary. An arbitrary form of law for the nobility from whom we expect the highest standards of conduct, this form of justice was first used in 1321, and last applied in 1798 against Lord Fitzgerald who led rebellion in Ireland. So why should we invest time, effort and cost in making any new law in respect of the Upper House, when there is a (relatively) modern precedent?

Should legislation be enacted retrospectively? Any offences which may arise from the present investigations have already been committed, therefore any new law would have to apply retrospectively, even though it might be disguised to appear otherwise. There may be instances where retrospective legislation is acceptable, for example to legitimise a norm established under a transitional or usurping administration, but in any other circumstances it is an abomination, with no place in a functioning democracy. How can Lords Taylor, Truscott, Snape and Moonie be judged according to a law which did not exist at the time of the alleged misconduct? To do so would be to make the law the arbitrary instrument of the state.

The threat of Straw’s law being applied to Lords Archer and Black appears to be receding[5], but it is disturbing that it was ever considered, as it would effectively be a second sentence for the same conviction.

This perverse approach to law-making could lead to some interesting scenarios. Consider:

Defendant: I had nothing to hide, so there was nothing to fear

Court: That was ten years ago

or:

Defendant: But I paid my fixed penalty at the time

Court: We’ve changed the penalty to 50 hours community service

Are these examples fanciful? Or is it fanciful to assume we will have courts in ten years’ time[6]?

Despite some awkward moments in relation to his legal professionalism[7], Straw ought to be the natural opponent of such legislation. But we should not forget that it did crop up in the 20th century, most spectacularly since Labour came to power, in order to impose some unexpected (‘windfall’) taxes.

Will the punishment fit the crime? It is worth comparing the nature of the offences and alleged misconduct. Jeffrey Archer was convicted of perjury, and Conrad Black of fraud. Both are relatively common offences, which anyone could commit. They have brought themselves into disrepute, but not the House of Lords. On the other hand, those entrusted with revising the law have an obligation to the country, and it ought to be unthinkable that they would represent the interests of their paying clients instead – ‘paid advocacy’ is forbidden. (Perhaps it is because of the level of trust involved, that it was not previously thought necessary to have legislation to govern the way legislators carry out their duties.) It seems to me that interfering with the law for personal gain, as alleged by the Sunday Times investigation, is in a completely different league from ordinary crime.

Has the emphasis changed? The headlines seem to imply that it has. It is unclear how tax residency or previous criminal convictions are in any way comparable with breach of trust in the execution of the duties of the peerage. There may be an element of political motivation, or perhaps the intention is to distract attention from the fact that only Labour peers have been implicated in this scandal.

Since gaining power, Labour have rushed through a great many laws. Often we hear of draconian implementations far removed from the original stated purpose, and some subsequent changes avoid Parliamentary scrutiny altogether[8]. We do not need more laws like this.

I doubt very much whether Mr Straw will have much interest in such details, so we should expect headlines like ‘Tough new laws against disgraced peers’ and to have smug, patronising politicians ‘educate’ us about why retrospective legislation is the ‘right thing to do’ and we ought to like it. Who knows? it may find popular support.

Ironically, that ought to be Labour’s greatest fear, for how might retrospective, vindictive laws be applied to a disgraced government after it loses power? Perhaps Mr Straw will think about that.